3 F.2d 829 | E.D.N.Y | 1924
Libelants have brought an action in admiralty and have filed a libel against the steamship Buckleigh to recover for damages received by a shipment of onions from Spain to New York City. The owner of the Buckleigh has in-terpleaded the charterer, the Fabre Line, on three grounds:
(1) The cargo was loaded and discharged by the servants of said line.
(2) Under the terms of the charter, the charterer assumed liability for bad stowage and improper or insufficient dunnage, and
(3) The ship’s officers acted as the servants of the charterers in connection with the stowing, carriage, and delivery of the cargo.
It seems to be clearly established by a preponderance of credible testimony that the onions were in good condition when shipped, and that they were very badly damaged when they arrived in New York. It further appears that they were shipped in crates constructed so as to make their contents visible. Thus the carrier was put upon notice and was bound to furnish a vessel seaworthy for the conveyance of a cargo of that nature. There was some testimony that the damage was caused in great part by sweat which results from condensation taking place in the holds. This lies in beads on the steel deck and during the voyage drips from the beams. Even if the court were not justified in finding that the vessel was unseaworthy, for the reason given, the case must be decided because of the manner in which the vessel was navigated and the unreasonable delay in reaching port, which resulted in the shipment arriving in a condition unfit for use to a great extent, which condition would not have developed if the cargo had been delivered in the time usually required for such a voyage.
The vessel came over from Valencia, Spain, reaching the Jersey coast, of£ Barne-gat, March 16, 1923, shortly after noon. There she altered her course so as to come up to the New York Harbor. Instead of taking the usual and customary course, the
The Buckleigh started to run up from Barnegat, covering a distance of 50 miles, in less than five hours, whieh was at a rate about equivalent to her full speed. Some of the witnesses for the vessel stated that she went much slower, but it does not appear that she ever attempted to anchor, although she was navigating in a dense fog. It does not seem to the court that there can be any conclusion except that there was gross negligence in operating the vessel, as a result of whieh she ran aground, was delayed for a considerable period as a result thereof, during which time the onions, which would otherwise have been landed in good condition, sprouted to such an extent that they were badly damaged. A reading of the testimony brings one irresistibly to the conclusion that there was negligence in the navigation of the vessel.
It does not seem to the court that a general average should be ordered in view of the finding that the vessel was guilty of negligence. If the court is correct in its conclusion, the libelants should have a decree for the ■ damage which they have sustained, based on the difference between the market value of the goods at the Port of . New York, the place of delivery, in good condition, and the net amount realized from the sale of the goods; i. e. their value in their damaged condition. If the parties cannot agree upon the amount, as a result of the testimony taken at the trial, the court will refer the matter to a commissioner.
There will be a decree for the libel-ant against the claimant for the reason that the charter here was a contract of affreightment and not a demise. The owner remained in possession of the ship and her cargo and was responsible for their safe carriage. Reed v. United States, 11 Wall. 600, 20 L. Ed. 220; Leary v. United States, 14 Wall. 607, 20 L. Ed. 756; New Orleans-Belize Steamship Co. v. United States, 239 U. S. 202, 36 S. Ct. 76, 60 L. Ed. 227; The Claveresk (C. C. A.) 264 F. 276.
/ ' The petition against the Fabre Line is dismissed.